6 Months in Jail for Speaking to Newspaper About Your Court Case

In most states, if a court issues a gag order and you don't appeal it, you can go to jail for violating it even if you later argue that it violates your First Amendment rights.

From In re K.P. & C.P., decided yesterday by the Colorado Court of Appeals (Judge David Yun, joined by Judges Matthew Grove and Dennis Graham:

The juvenile court found C.P., a/k/a K.A. (K.A.), in contempt for violating permanent civil protection orders barring her from discussing her children's dependency and neglect case with most third parties. At a hearing that occurred several months after it had issued the protection orders, the court entered its judgment of contempt and sentenced K.A. to six months in jail. K.A. now appeals only the contempt judgment, arguing that the protection orders violated her constitutional right to free speech and that insufficient evidence supported the court's judgment of contempt.

This appeal therefore requires us to determine whether K.A., in appealing the contempt judgment, may collaterally attack the lawfulness of the underlying protection orders. We conclude that she may not. Under the collateral bar rule, a party must obey a court order—even an unconstitutional order—unless and until that order is stayed, set aside, or reversed on appeal. With rare exceptions, a party cannot challenge a court order by violating it. This is so because the orderly and efficient administration of justice would be jeopardized if parties could determine for themselves when and how to obey a court order….

Here's the factual and procedural story:

This contempt proceeding followed K.A.'s contentious divorce from C.P., the father of their three daughters, K.P., L.P., and M.P., as well as the family's involvement in two dependency and neglect cases….

In 2017, the year before the divorce became final, the Arapahoe County Department of Human Services filed a petition in dependency and neglect alleging that the father was sexually abusing the two younger girls. A jury, however, found that the children were not dependent or neglected.

Two years later, the Department filed a second petition, this time asserting that K.A. had coached the oldest daughter into falsely reporting sexual abuse by her father as part of K.A.'s pattern of emotionally abusing the girls. A jury found all three girls dependent and neglected as to K.A., and the juvenile court ordered her to comply with a treatment plan designed to give her "insight into how [her] behaviors alienated and emotionally harmed her children." K.A. appealed the adjudication, but a division of this court affirmed it….

Soon after, in April 2020, K.A. posted a "Petition to Protect CHILDREN!" on the website change.org. In this posting, K.A. alleged that, despite her daughters' disclosure of sexual abuse by their father, protective services, law enforcement, and mental health professionals had all insisted that the girls live with him. The petition included a video of the youngest daughter being interviewed by K.A. and making an outcry of sexual abuse, as well as a video of the oldest daughter's journal entries disclosing sexual abuse by her father—evidence that K.A. had never disclosed to the Department or the police.

In May 2020, the Department moved for a protection order under section 19-1-114(2)(a), C.R.S. 2021. It alleged that K.A.'s posting invaded the children's privacy and showed that "any progress in her treatment plan was feigned" and that she refused to "own[] that she coached her children" into making outcries of sexual abuse against their father. The court agreed that K.A. was not acting in the girls' best interests and granted the protection order (the May protection order). Among other things, the court required K.A. to take down the petition, prohibited her "from posting on social media sites information related to the Minor Children and the allegations of abuse or neglect associated with this case" (including doing so through third parties), and obligated her to provide the Department with the videos attached to the change.org petition. The court warned that her failure to comply with the order could "result in contempt proceedings and up to six months in jail."

But K.A. refused to take down the petition, added copies of the girls' handwritten notes when the website hosting the video took it down, and continued to post about the allegations on social media, as well as on her own website. As a result of K.A.'s defiance of the May protection order and her failure to engage in her treatment plan, the Department filed two motions: one for a contempt citation against K.A., and another to terminate her parental rights. The juvenile court scheduled a hearing on both matters over two days in late August 2020.

On the first day, the court found beyond a reasonable doubt that K.A. had willfully violated the May protection order. It delayed sentencing her for contempt until after the termination hearing, which was set to continue through the next day. K.A., however, failed to appear (or to have counsel appear on her behalf) the following morning, so the court issued a bench warrant and did not proceed with sentencing. At the end of the hearing, the court terminated K.A.'s parent-child legal relationships with her three daughters. The court also sealed the court records, stating that no party was to release any filing in the case to any third party or ask other people to post anything on the internet regarding the case….

The juvenile court [later] … narrowed the September protection order so that K.A. could communicate about the case with her therapists and doctors, as well as her attorneys (the December protection order). The December protection order says,

Because this Court is certain that more harm will occur from future postings regarding the allegations of sexual abuse in this case, the Court first ORDERS that [K.A.] shall be restrained from posting any information related to the allegations of abuse or neglect which were investigated during this case on any website or social media outlet. This includes posting through a third party, which is subject to the provisions outlined above, as [K.A.] may be held liable for directing any third party to post such information. Further, the Court further ORDERS that [K.A.] shall be restrained from discussing the allegations of abuse or neglect which were investigated during this case or providing any case-related information, including but not limited to any documents within the case file, to any third party who does not have a legal duty of confidentiality to [K.A.] Thus, [K.A.] may discuss this case with her attorneys, therapists, or doctors, but she may not direct these third parties to release or disseminate case-related information to any other third party or to the public.

Though the court recognized K.A.'s First Amendment concerns, it concluded that the December protection order passed constitutional muster. The order, the court explained, was the least intrusive means necessary to serve the government's compelling interests in protecting domestic abuse victims and the privacy of children involved in dependency and neglect proceedings. The court further found that, "based on the history of this case and [K.A.'s] repeated and relentless dissemination of the false allegations of abuse, Father and all three children will undoubtedly suffer great, grave, and certain harm as a result of continued expression." …

On December 31, 2020, the father moved for a contempt citation against K.A. He alleged that an article published three days earlier in an online edition of the Colorado Springs Gazette includes details about the dependency and neglect case that K.A. must have shared, either directly with the author or through a third party, in violation of the juvenile court's protection orders.

The article, titled "A sick mom, alone in a cell, on Christmas Eve," does not include anyone's name, but it does include, among other things, (1) K.A.'s experience of having COVID-19 in jail {K.A. was serving time in jail on prior contempt citations that are not part of this appeal}; (2) K.A.'s "unwavering belief" that the father sexually abused the children; (3) that K.A. is in jail for seventeen months for violating a "gag order" in the case; and (4) that K.A. wrote to her friend, "A system shouldn't be able to destroy someone's life. Punished for protecting, for speaking truth, for loving my daughters so much—I would do anything for them." Even though the case was sealed, the week after the article's publication, the juvenile court received two voicemail messages urging it to release K.A. from jail….

The appellate court applied the so-called "collateral bar" rule as set forth in Walker v. City of Birmingham (1967):

[In Walker], Birmingham officials obtained an injunction prohibiting Dr. Martin Luther King, Jr., and other civil rights protesters from parading without a permit. Rather than appealing the injunction, the protesters disobeyed it. They were subsequently charged with violating the injunction, fined, and sentenced to jail. The Court noted that the ordinance, which provided the basis for the injunction, "unquestionably raise[d] substantial constitutional issues" and that "[t]he breadth and vagueness of the injunction itself would also unquestionably be subject to substantial constitutional question." Nonetheless, the Court ruled that the protesters could not collaterally raise those constitutional issues in the contempt proceedings….

The Court declared, "[t]his case would arise in quite a different constitutional posture if the [protesters], before disobeying the injunction, had challenged it in the Alabama courts, and had been met with delay or frustration of their constitutional claims." Thus, despite the potential illegality of the injunction, the Court upheld the protesters' convictions because the protesters "were [not] constitutionally free to ignore all the procedures of the law and carry their battle to the streets." The Court observed that "no man can be judge in his own case, however exalted his station, however righteous his motives, and irrespective of his race, color, politics, or religion." …

While we acknowledge that K.A. has raised substantial constitutional issues regarding the protection orders, the juvenile court's order "must be obeyed by the parties until it is reversed by orderly and proper proceedings." Because K.A. decided to disobey the protection orders rather than challenge them on appeal, she cannot collaterally raise those constitutional issues in this appeal….

[One exception is that] "court orders that are transparently invalid or patently frivolous need not be obeyed." But to protect the judiciary's dignity and authority, "we must indulge … a heavy presumption in favor of the validity of every court order." "Only when there is no colorable, nonfrivolous argument to support the order being reviewed should a contemnor be excused from his disobedience of the order." We cannot say that no colorable, nonfrivolous argument supports the validity of the juvenile court's protection orders. See In re Marriage of Newell (Colo. App. 2008) (concluding that a parent's exercise of free speech that "threatened the child with physical or emotional harm, or had actually caused such harm," could establish a state interest sufficiently compelling to curtail the parent's free speech rights)….

I'm not sure the collateral bar rule is sound. It's true that it's important for the rule of law that people generally follow court orders, but it's also important that people generally follow statutes—and yet we allow people to violate a statute and raise a First Amendment defense when they're prosecuted, rather than requiring them to challenge the statute up front. Why not do the same for court orders? Indeed, some states, such as my own California, reject the collateral bar rule and do allow people to raise a First Amendment defense when challenging a contempt prosecution for violating an injunction, and the skies haven't fallen. (California has many problems, but I don't think they stem from the collateral bar rule.)

Moreover, many civil defendants can't afford a lawyer, and, unlike in criminal cases, don't have court-appointed lawyers; they may thus find it hard to appeal an injunction. It's only when they are prosecuted for contempt, and are entitled to a court-appointed lawyer if there's the possibility of jail time, that they can realistically raise their First Amendment claims.

But in any event, rightly or wrongly, most jurisdictions do follow the collateral bar rule. So if you think the injunction against you violates your First Amendment rights, you need to appeal promptly or else forfeit your First Amendment claim.